Five Words Special Education Directors Fear: “Something ... - IAASE

DARCY L. KRIHA
312.786.6569
dlk@franczek.com
Five Words Special Education Directors Fear:
“Something Happened on the Bus!”
IAASE Winter Conference
February 26, 2013
1. What laws apply to student transportation issues?
A. 23 Ill.Adm.Code §226.750(b)
Each child who is eligible for special education and related services pursuant to this Part
shall be eligible for special transportation. Such transportation shall be provided as the
child's disability or the program location may require.
1) Arrival and departure times shall ensure a full instructional day which is
comparable to that of the regular education students. Any deviation from
this standard must be based upon the individual needs of the child and
reflected in the child’s IEP.
2) Every effort should be made to limit the child’s total travel time to not
more than one hour each way to and from the special education facility.
3) The special transportation shall be scheduled in such a way that the
child’s health and ability to relate to the educational experience are not
adversely affected.
4) Vehicles utilized for special transportation shall be adapted to the
specific needs of the children receiving this service.
5) Personnel responsible for special transportation shall be given training
experiences which will enable them to understand and appropriately
relate to children with disabilities.
6) When a district has placed students in a State-operated or nonpublic day
program, the district shall provide transportation for the children in that
program.
7) When a child is placed in a residential facility, the school district shall
provide transportation services for the child’s initial trip to the facility
and return home at the close of the school term. The district shall
likewise provide transportation for the child at the beginning and end of
each school term thereafter. (Additional specifics concerning
transportation to and from residential facilities is contained in the
regulation, but omitted from this outline).
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B. Individuals with Disabilities Education Improvement Act (IDEA), 20 U.S.C.
§1401(26); 34 C.F.R. §300.34
(i) Travel to and from school and between schools;
(ii) Travel in and around school buildings; and
(iii) Specialized equipment (such as special or adapted buses, lifts, and ramps), if required
to provide special transportation for a child with a disability.
C. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794; 34 CFR §104.1 et. seq.
1. How does Section 504 apply? “No qualified student shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any ... transportation, other
extracurricular, or other post-secondary education program or activity.”
2. What is an example of a Section 504 transportation issue? Typically, the only
time that a transportation issue arises under Section 504 is in situations where a
school district has determined that a Section 504 student requires transportation
in order to receive FAPE. This is very unusual.
D. Americans with Disabilities Act (ADA), 42 U.S.C. §12101
1. How does the ADA apply? The ADA prohibits discrimination against all persons
with disabilities, and applies to public agencies, including schools and school-age
children.
2. What is an example of an ADA transportation issue? A general education
student requires hip surgery after breaking his hip while skiing. His hip must
remain immobile for a period of four weeks. He lives 10 miles from school. Can
the school district secure a lift bus without “undue cost”? If yes, the lift bus
should be dispatched to pick up and drop off the student. If no, homebound
tutoring must be provided or parents can transport.
2. Is transportation always considered a necessary related service?
No
A. Each IEP team is charged with the responsibility for deciding, on an individualized basis,
whether or not a special education student requires transportation as a related service in
order to receive a FAPE. If a student with a disability requires transportation as a related
service, the school district must provide it at no cost to parents. This is true even in
situations where the district does not otherwise offer transportation to nondisabled
students.
B. Some school districts always check the “yes” box for transportation on the IEP – why? It
may be related to whether the school district receives full funding for special education
transportation (as compared to limited funding for other types of transportation).
C. Weymouth Public Schools, 56 IDELR 117 (SEA Mass. 2011)
1. Transportation required though need was not related to the student’s disability.
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2. District offered two 30-minute sessions of speech per week to a 4-year old
student attending a private preschool at parental expense. Parents wanted
transportation between the private preschool and the public school where the
speech services would be provided, four houses down the street.
3. The IHO looked at the following factors to determine whether transportation was
actually necessary for the student to benefit from the speech-language services to
which she was entitled: her age; the distance she must travel; the nature of the
area through which she must pass; her access to private assistance in making the
trip; and the availability of other forms of public assistance in route, such as
crossing guards or public transit. Even though the distance was very short, the
IHO found that the young student could not travel independently to her speech
services.
D. Los Angeles Unified Sch. Dist., 51 IDELR 292 (SEA Cal. 2009)
1. Transportation was not required where student demonstrated the ability to get to
school on her own.
2. 5th grade student with a learning disability attended a school other than her
neighborhood school (“school choice” by virtue of NCLB). She was required to
walk to her neighborhood school, where she was transported to her school of
“choice.” Parents requested that she receive “door to door” transport.
3. Parents argued that due to their daughter’s young age, that it was not safe for her
to walk to and from her neighborhood school. No persuasive evidence was
presented that the route to the neighborhood school or the bus zone where she
waited were unsafe.
E. Soquel Union Elementary Sch. Dist., 108 LRP 512 (SEA Cal. 2007)
1. Transportation was not required where student’s need for transportation was the
same as that of his nondisabled preschool peers.
2. The district previously provided transportation to all special education students,
but changed the policy due to funding issues.
3. The fact that the student could not safely walk to school independently did not
mean he automatically qualified for transportation. He did not need
transportation due to his unique needs; his needs were the same as that of
typically developing peers. The IHO found that transportation was not required
for the student to receive educational benefit.
F. Lincoln Elementary Sch. Dist. 156, 47 IDELR 57 (SEA Ill. 2006)
1. The IHO deferred to the IEP team’s decision that transportation was not a
required related service.
2. A five-year-old student with a developmental disability lived six blocks from
school. His IEP team determined that transportation was not required.
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3. Although the student had asthma, there was no medical documentation of the
severity of the asthma. Here, the IEP team did not believe that transportation was
a required related service and the IHO did not second guess that decision.
G. Eagle County Sch. Dist. RE-50J, 46 IDELR 176 (SEA Colo. 2006)
1. Transportation required though need was not related to disability.
2. Mother requested transportation for four-year-old son receiving speech services
at the local elementary school to his day care center 10 miles away. The district
did not provide transportation for any preschool student, disabled or not, unless it
was a related service. The district argued that the student’s speech impairment
did not impair the student’s mobility.
3. The IHO cited regulatory guidance that transportation as a related service
includes transporting preschool aged children to the site where the district
provides special education if that site is different from the site where the child
receives other preschool or day care services. Transportation must be provided as
a related service if necessary to access special education, regardless of the
presence of any link between the child’s disability and transportation.
4. In this case, the IHO held that the student could not receive special education
services without district transportation, so transportation between preschool and
day care was required for FAPE.
3. When there is a transportation dispute, is the bus driver or bus aide required to be in
attendance at the IEP meeting?
No.
A. It is becoming more common for parents to ask that the bus driver/aide attend IEP
meetings. Federal law does not list these individuals as required members of an IEP team.
34 C.F.R. §300.321.
B. However, it is good practice to obtain input from bus drivers/aides in advance of IEP
meetings to share with parents.
4. Is an ambulatory impairment required to receive transportation as a related service?
No
A. In re: Student with a Disability, 59 IDELR 180 (SEA NY 2012)
1. An elementary school student with autism, ADHD, and a language disorder was
entitled to door-to-door transportation services. The student lived within a 5–10
minute walk from school and was denied transportation by the IEP team because
he did not have an ambulatory impairment.
2. The IHO held that an ambulatory impairment was not necessary for a student to
receive transportation as a related service. School districts are required to make
case-by-case determinations, taking into account a child's mobility, behavior,
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communication skills, physical needs, age, ability to follow directions while
factoring in the distance the child will have to travel, the nature of the area, and
the availability of private or public assistance.
3. The student had communication issues, difficulties with focusing, following
directions, self-control, and that he exhibited impulsive behaviors and an
underappreciation for danger that limited his independence.
4. If the student cannot access his or her special education without provision of a
related service such as transportation, the district is obligated to provide the
service, “even if that child has no ambulatory impairment that directly causes a
‘unique need’ for some form of specialized transport” (Donald B. v. Bd. of Sch.
Commrs., 117 F.3d 1371, 1374-75 (11th Cir. 1997)).
5. Does the doctrine of LRE (least restrictive environment) apply to transportation?
Yes
A. Each public agency must ensure that [34 C.F.R. 300.114(a)(2)]:
(i) To the maximum extent appropriate, children with disabilities, including children in
public or private institutions or other care facilities, are educated with children who are
nondisabled; and
(ii) Special classes, separate schooling, or other removal of children with disabilities from
the regular educational environment occurs only if the nature or severity of the disability
is such that education in regular classes with the use of supplementary aids and services
cannot be achieved satisfactorily.
B. Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg.
46576 (August 14, 2006): “Discussion: It is assumed that most children with disabilities
will receive the same transportation provided to nondisabled children, consistent with the
LRE requirements in Sec. 300.114 through 300.120, unless the IEP Team determines
otherwise.”
C. Questions and Answers on Serving Children with Disabilities Eligible for Transportation,
53 IDELR 268 (OSERS 2009): “The IDEA does not require [school districts] to transport
children with disabilities in separate vehicles, isolated from their peers. In fact, many
children with disabilities can receive the same transportation provided to non-disabled
children, consistent with the least restrictive environment requirements in 34 CFR
§§300.114 through 300.120.
D. Superior School District, 5 ECLPR 87, 107 LRP 57149 (SEA Wisc. 2007)
1. “Because the least restrictive environment (LRE) provisions of the IDEA apply
to transportation services, school districts must transport children with
disabilities, consistent with their needs, to and from school with children who are
not disabled to the maximum extent appropriate.” See East Windsor Board of
Educ., 20 IDELR 1478 (SEA Conn. 1994).
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2. “In other words, when a disabled student’s transportation needs can be met on a
regular education school bus, the student should ride the regular education bus
rather than be placed on a special education bus.” See Kenai Peninsula (AK)
Borough Sch. Dist., 20 IDELR 673 (OCR 1993).
E. North Penn School District, 109 LRP 62301 (SEA Penn. 2009)
1. 13-year-old 7th grade student diagnosed with a severe seizure disorder. She
required air conditioned transportation, so she was transported alone (with her
1:1 nurse) on a “small” special education bus. Parents wanted their daughter
transported with her friends on the “large” school bus.
2. In addition to the need for air conditioning (which was not available on the large
bus), the student was prescribed Diastat, which was carried by the nurse at all
times. The school district’s position was that in the event Diastat needed to be
administered on the bus, the smaller bus offered more room and privacy. The
parents disagreed, instead offering a “privacy sheet” to hold in front of the
student if Diastat needed to be administered.
3. The IHO cited Ms. S. ex rel. L.S. v. Scarborough Sch. Committee, 42 IDELR 117
(D. Me. 2004), which concluded that the regulations were unclear as to whether
the IDEA’s LRE mandate applied to transportation: “it is not at all clear that the
‘least restrictive environment’ requirement of the IDEA applies to
transportation.”
4. The IHO ruled in favor of the school district: “[I]t presents a riddle to this
hearing officer to contemplate that [the student] reportedly would not mind
having a medication inserted into Student’s rectum in the presence of Student’s
peers, with or without a privacy blanket, but would not feel normal riding the
small school bus.”
F. City of Chicago School District 299, 112 LRP 54831 (SEA Ill. 2012)
1. Parent requested that a 20-year-old student with a learning disability be
transported to school in a minivan instead of a large bus. The parent argued that
her son required a minivan to reduce the effects of his anxiety disorder and
motion sickness.
2. The IHO found that there was no evidence that bus rides caused the student's
anxiety, behavior, or decreased instructional time. The bus driver testified that
the student generally went to sleep on rides to school and did not complain of
illness or upset stomach.
6. Are school districts obligated to perform/provide medical services during transportation?
Yes
A. School districts must consult their state law for guidance in this area. Some states have
strict provisions in this area and heavily regulate what educational background is needed
to perform certain medical procedures.
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B. School health services and school nurse services are included in the IDEA’s definition of
“related services.” 34 CFR 300.34(c)(13). The collective term means “health services that
are designed to enable a child with a disability to receive FAPE as described in the child's
IEP. School nurse services are services provided by a qualified school nurse. School
health services are services that may be provided by either a qualified school nurse or
other qualified person.”
C. Cedar Rapids v. Garret F., 29 IDELR 966 (1999)
1. The U.S. Supreme Court adopted a bright-line rule that schools must administer
medical procedures to a student with a disability both in the classroom as well as
on the school bus, provided those treatments can be administered by a person
other than a physician.
2. Specifically, the question is: can a layperson be trained to perform the medical
procedure? If the answer is yes, the service is a health service that a school must
provide. If the answer is no, the service is a medical service that a school need
not provide. See also Skelly v. Brookfield LaGrange Park Sch. Dist. 95, 26
IDELR 288 (N.D. Ill. 1997), and Farmers Ins. Exchange v. S. Lyon Comm. Sch.,
31 IDELR 4 (Mich. Ct. App. 1999).
7. Can medical procedures be administered/performed by the bus driver?
Maybe, but exercise caution
A. Forest Area Community Schools, 47 IDELR 117 (SEA Mich. 2006)
1. Trained bus driver could administer medication, aide not required.
2. Parent requested an aide for the bus for an elementary student with epileptic
seizures. If a seizure occurred, medication must be administered rectally within
one minute. The school district trained the bus driver to administer the
medication and refused to provide an aide. Parents argued one person must
administer the medication and another person must supervise the other children.
3. The school’s plan called for the student to sit in the front seat so the driver could
observe him and monitor for signs of a seizure, as well as for the use of a drape
to preserve the student’s privacy. There was no evidence that the bus driver could
not pull over and administer the medicine within the one minute time frame.
B. Clark School District, 20 IDELR 468 (SEA S.D. 1993)
1. Aide was required to dispensation of medication.
2. “[T]he bus driver seemed to have a less clear understanding of what else would
need to be done to provide for Amanda’s safety in the event of a seizure, other
than administering the medication at an appropriate time.”
3. “It seems to me that a school bus driver has a number of unusual demands on his
attention. He is driving a vehicle which is large and cumbersome. He has to be
concerned not only with the usual concerns of driving a vehicle of that size, but
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with the special problems of loading and unloading. And then there are the
children. Unless children generally have calmed down a great deal since I rode a
school bus, which seems improbable, 55 to 60 children confined in a school bus
will, inevitably and regularly, create distractions of mountainous proportions.”
8. Can information concerning the student’s medical condition be shared with bus drivers and
aides?
Yes
A. The Family Educational Rights Privacy Act (FERPA) allows nonconsensual disclosures
of information about a student to school officials with a “legitimate educational interest”
in the records maintained by the district. 34 C.F.R. §99.3.
B. Bus driver, aides, parent chaperones, etc., generally meet this criteria and may properly
be informed of any medical/health situations related to students for whom they are
responsible ― either in the classroom, on the bus or during a field trip. Letter to
Anonymous, 107 LRP 28330 (FERPA Compliance Office 2007).
9. Do bus suspensions count as days of suspension from school?
It depends
A. Is transportation a related service on the student’s IEP summary? Federal guidance
answers the question directly:
“Whether a bus suspension would count as a day of suspension would depend on
whether the bus transportation is a part of the child’s IEP. If the bus
transportation were a part of the child’s IEP, a bus suspension would be treated
as a suspension under Sec. 300.530 unless the public agency provides the bus
service in some other way, because that transportation is necessary for the child
to obtain access to the location where services will be delivered. If the bus
transportation is not a part of the child’s IEP, a bus suspension is not a
suspension under Sec. 300.530. In those cases, the child and the child’s parent
have the same obligations to get the child to and from school as a nondisabled
child who has been suspended from the bus. However, public agencies should
consider whether the behavior on the bus is similar to behavior in a classroom
that is addressed in an IEP and whether the child's behavior on the bus should be
addressed in the IEP or a behavioral intervention plan for the child.”
B. If transportation is a related service, a bus suspension that results in the student’s
inability to come to school is considered a day of suspension from school. However, if
the student is able to attend school (i.e., is driven by a parent), the bus suspension would
not be considered a day of suspension.
C. If transportation is not a related service, “the child and his or her parents would have
the same obligations to get to and from school as a nondisabled child who had been
suspended from the bus” and the bus suspension would not count as a day of suspension.
However, the school district should determine whether the behavior that resulted in the
bus suspension is similar to the behavior in a classroom that is addressed in an IEP and
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whether bus behavior should be addressed in the IEP or the student’s behavior
intervention plan.
D. Source:
1. Analysis of Comments and Changes to 1997 IDEA Part B Regulations, 64 Fed.
Reg. 12619 (March 12, 1999)
2. Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed.
Reg. 46715 (August 14, 2006)
10. Is an MDR (manifestation determination review) required when bus suspensions exceed 10
days?
Yes
A. Letter to Sarzynski, 112 LRP 35343 (OSEP 2012)
1. In situations when transportation is a related service and a bus suspension will
exceed 10 days (or is otherwise part of a pattern of removals that exceeds 10
days) and the district does not provide alternate transportation, the school district
must conduct an MDR review. This obligation is not excused when parents
assume the responsibility of transporting their child to and from school.
2. OSEP relied on Questions and Answers on Serving Children with Disabilities
Eligible for Transportation, 53 IDELR 268 (OSERS 2009).
11. Can parents be required to attend field trips in situations where their child needs
medication?
No
A. Macomb (MI) Intermediate School District, 112 LRP 50209 (OCR Mich. 2012)
1. It was apparent that a teacher, in error and possibly due to a misunderstanding,
sent a classroom note to parents stating that “if your child is on Diastat, you must
attend the [field trip] for your child to be able to go.”
2. OCR confirmed that school districts may not, under any circumstance, exclude
students with seizure disorders from participating in field trips for lack of
parental participation; or to direct, suggest, or imply that such students must stay
home or require assignment to another classroom on the day of a field trip.
12. Does ‘door-to-door’ really mean what it says?
Yes; use caution
A. Be very careful when using this phrase in a student’s IEP summary, because an IHO will
usually hold it literally means “door-to-door” assistance, which may or may not be
appropriate given the unique needs of the student. Also, check state law.
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B. Sussex-Wantage Regional Bd. of Educ., 57 IDELR 174 (SEA N.J. 2011)
1. Door to door transportation was not required for preschool student.
2. The parent requested door-to-door service, but the IEP did not specify this as a
requirement. The bus dropped the preschool students off in the strip-mall where
the day care was located, removed from the main road, about 200 feet from the
entrance to the day care. The students were escorted to and from the bus by an
assistant and were supervised while they waited. The IHO held that the student
received FAPE.
C. Seymour Board of Education, 55 IDELR 22 (OCR 2009)
1. A student with visual and hearing impairments had an IEP that included “doorto-door”
transportation. The district had difficulties having the bus go to the
student’s door because of legal issues with the condo association.
2. This delayed transportation for several months, during which time the school
district did not provide alternative means for the student to get to school. OCR
held that the school should have found an alternative means of transportation.
13. Must transportation be provided for extracurricular activities?
The answer will depend on:
1. Is transportation provided to general education students?
2. Is the activity considered a related service on the student’s IEP?
B. Bd. of Educ. of the Port of Washington Union Free School, 106 LRP 32717 (SEA N.Y.
2006)
1. School district refused to provide late busing so a 10-year old student with a
hearing impairment could participate in after school activities at her out-ofdistrict
school. Parent claimed late transportation was required to provide the
student FAPE and an equal opportunity for participation in nonacademic and
extracurricular activities.
2. The IHO found such participation was not required for her to receive educational
benefit; the requested activities were not part of the academic, psychological, or
social-emotional evaluation recommendations and were not IEP driven.
Additionally, the district had eliminated its own extracurricular activities, so she
had the same opportunities as her nondisabled peers.
A. Department of Education, State of Hawaii, 46 IDELR 266 (SEA Haw. 2006)
1. Transportation to community-based after school program was required.
2. A 17-year-old student with autism attended a public high school. His IEP
included transportation as a related service. As part of his program, he
participated in a community-based after school program where he went into the
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community with a skills trainer to learn community and vocational skills based
on the goals and objectives in his IEP. The program varied on a daily basis and
required him to be transported to multiple locations in the community.
3. The principal said at the IEP meeting that the school district could not continue to
transport the student for liability reasons.
4. The IHO ordered the IEP team to reconvene to determine an appropriate mode of
transportation, and ordered the district to reimburse parent for expenses incurred
transporting the student.
B. Maple Lake School District, 108 LRP 21568 (SEA Minn. 2007)
1. Transportation to away games not required in IEP.
2. High school student with cerebral palsy was the basketball team manager. Parent
claimed that the school’s failure to provide the student transportation to away
basketball games was a denial of FAPE. The IHO found that the district policy
was to only provide bus transportation to away games for competing athletes.
3. The student’s IEP did not state that he needed to attend away games to meet his
transition goal of participating in extracurricular and community activities. The
student was able to participate in extracurricular activities with nondisabled
peers, make progress toward his transition goals, and improve his interaction
with his peers with the services provided.
14. Why the increase in disputes involving harness use on the bus?
Because a harness is a form of restraint, and restraint disputes are increasing
A. Pasadena (CA) Unified School District, 112 LRP 48812 (OCR 2012)
1. OCR found that the school district failed to properly evaluate and with its
continued use, re-evaluate the Student for the appropriateness of the use of the
Posey Belt restraint.
2. The student had a history of running or bolting out of the building. OCR took the
school district to task:
“None of the IEPs describe the circumstances under which the Posey belt
should be used, how often it should be used, mention staff training on the use
of the Posey belt, alternatives to the Posey belt, or identify discontinuation of
the Posey belt as a goal.”
“There was no on-going, systematic data collection or analysis on the
Student’s behavior or the continued need for the restraint, and yet the District
required the use of the restraint on the Student for more than two years.”
“[N]one of the behavior experts with whom OCR consulted stated that it was
appropriate to use the Posey belt in the manner it was used with the Student,
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particularly given the length of time it remained in use. Indeed, the experts
identified harm that is likely to be experienced by a student due to the use of
restraints and the need to evaluate for and, as necessary, remedy such
harms.”
“There was a lack of recognition that the Posey belt was being used to
restrain the Student's movement, a purpose for which the belt was not
designed. This tool did prevent a dangerous condition, bolting, but there is no
evidence that the District examined the question of whether it taught the
student how to refrain from this behavior.”
“Despite this extreme approach to controlling the student keeping him on a
leash, no formal assessment was done of the appropriate use of the tool,
when it should be used (if at all), what triggered the behaviors it was
intended to address, whether it was effective in addressing and diminishing
those behaviors, what would be the indicia of it no longer being needed, and
what alternative, less restrictive approaches to teaching the student to cease
the running behaviors could be employed by the District.”
B. Ferndale Public Schools, 51 IDELR 233 (SEA Mich. 2008)
1. Parents requested a due process hearing to dispute use of a harness or safety vest
on their 15-year-old son during transportation. The IHO found that the harness
did not restrict the student’s movement any more than a regular seat belt with a
shoulder strap would, the only difference was that the student could not release
the harness without assistance.
2. The student had a history of freeing himself from his seat belt and misbehaving
while the school bus was in motion. This included two occasions when he
removed his clothing and ran up and down the aisle trying to kiss other students.
3. The school district started to use the harness without memorializing this in the
IEP summary. The next year, the IEP summary indicated “seatbelt required;
harness if necessary to transport safely.”
4. The parent was concerned that her son could be trapped if there were some kind
of emergency in which the school bus driver became incapacitated. She requested
that an aide be assigned to the bus at all times that the harness was in use.
5. The IHO held that “the parent has not shown that the District’s use of the harness
when deemed by the bus driver to be necessary for safe operation is unreasonable
under the circumstances of this case, and the unlikely scenario of an accident that
incapacitates the bus driver yet traps the student too long for rescue by
emergency personnel seems a remote possibility compared to the obvious danger
posed by the student to both himself and the other occupants of the bus by his
demonstrated behavior on several occasions.”
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C. P.T. v. Jefferson Cnty Bd of Ed, 106 LRP 40276 (N.D. Ala. 2005), aff’d, 46 IDELR 3
(11th Cir. 2006)
1. A 10-year-old girl with Autism frequently got out of her seat on the special
education bus and sometimes became aggressive with other students.
2. The District Court held that the district’s use of a harness to restrain the student
in transit was appropriate. The student’s frequent wandering, tantrums,
behavioral outbursts and physical attacks on others were far more dangerous in a
moving vehicle than they would be in a classroom setting.
3. “Of course the plaintiff does not want P.T. harnessed. No parent would.
However, the defendant has an interest in protecting not only the safety of P.T.,
but the safety of the other students on the bus, the driver, and occupants of other
vehicles and pedestrians.”
4. “Unlike using restraints in a classroom, a bus is a vehicle designed for
transportation, not education. Because a vehicle moves in traffic, tantrums,
behavioral outbursts, throwing objects and attacking others is much more
dangerous behavior on a bus than in a classroom. The evidence before the court
is that the harness was not in the nature of a straightjacket, as described by the
plaintiff, but more in the nature of a harness used in a child seat. It allows P.T.
movement of her arms and legs, but prevents her from getting out of her seat or
removing her shoes to throw.”
D. Pearland Independent School District, 107 LRP 32133 (SEA Tex. 2006)
1. The school district used a harness on the student while she rode the bus. The
student engaged in behaviors that included unbuckling the lap seat belt,
attempting to walk around the bus, and slapping, kicking and spitting at bus
monitors and other passengers.
2. The school district attempted other, less restrictive, interventions such as
increasing the space between passengers, redirecting the student, having the bus
monitor provide additional supervision, and supplying toys to distract the student,
the student’s problem behaviors continued.
3. The IHO determined that the harness was necessary to ensure the safety of the
student, the bus monitors, and the other passengers. The IHO also found that the
district’s temporary use of padding on the window by the student’s seat was
appropriate, because the student had attempted to kick out the window on several
occasions.
E. Loogootee Community School Corporation and the Daviess-Martin Special Education
Coop., 56 IDELR 180 (SEA Ind. 2010)
1. Just hours after the IEP team developed a “bus BIP” for the student, he was
restrained on the bus. The plan was developed in response to concerns about the
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student’s behavior on the bus, and required the district to assign a trained
paraprofessional to accompany the student on the bus.
2. The IHO found that the use of physical restraint on the bus was permissible. The
teacher assigned to ride the bus with the student was certified in crisis prevention
intervention and trained in the use of de-escalation techniques. The IHO
concluded that the teacher was sufficiently qualified to accompany the student on
the bus until the district trained a paraprofessional to take her place.
15. Are accommodations such as use of helmets and harnesses on the bus an IEP team decision?
Or can school personnel unilaterally require their use to ensure a student’s safety?
I advise clients that the IEP team must make the decision
A. Currently, there is some disagreement about aspects of transportation that have an impact
on the health, safety or welfare of a student.
B. For example, let’s assume that a harness is not listed on the student’s IEP summary, the
student is wreaking havoc on the bus and parents will not agree to the use of a harness. Is
this an IEP team decision (that requires notice to parent and an opportunity to file for due
process, thus invoking “stay-put”) or is this a unilateral decision that can be made by a
school district? Conservative advice is that adding a harness, etc., is an IEP change that
requires advance notice, allowing parents to invoke the student’s stay-put placement.
C. Savannah R-III School District, 108 LRP 48864 (SEA Missouri 2008)
1. The student (diagnosed with Autism) was six feet one inches tall and weighed
two hundred seventy four pounds. “An uninformed observer might believe that
the Student was a prototypical high school football defensive tackle if he was
seen walking down the street or in the school hallway…. the Student's size and
strength is a factor when it viewed in the context of his recurrent, self-injurious,
head-banging behaviors.”
2. The student’s IEP team recommended that the student wear a helmet at school
and on the bus. Student’s Mother refused mostly because she did not want her
son to look different from his peers. She also reported that the head banging
behavior was a recurring behavior that went away when ignored and that it only
occurred when the student was bored.
3. The student’s IEP team discussed strategies to deal with the head banging
behaviors, including the use of headphones, joint compressions, a full-time bus
monitor, the use of a behavior chart and taking walks with his paraprofessional.
They also developed a Behavior Intervention Plan which addressed his
propensity to bang his head. The IHO held fully in favor of the school district.
16. Must goals/objectives be developed regarding the use of accommodations or related services
on the bus, e.g., harness, air conditioning, medication administration, etc.?
Generally, no
A. Letter to Hayden, 22 IDELR 501 (OSEP 1994)
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1. “If a related service such as air conditioning is necessary to enable the student to
attend school, but that service is not intended to increase the student’s skills, no
goals or objectives are necessary.”
2. “Similarly, if transportation is being provided solely to enable the student to
reach school, no goals or objectives are needed. If, however, instruction will be
provided to the student to enable the student to increase the student’s
independence or improve the student’s behavior or socialization during travel to
school, then goals and objectives must be included to address the need to increase
independence or improve behavior or socialization.”
17. Are school districts required to provide iPads (etc.) on the bus, either to entertain students
or help with their studies?
No (not yet)
A. Chaffey Joint Union High Sch. Dist., 59 IDELR 267 (SEA CA 2012)
1. The parents of a 16-year-old diagnosed with Autism requested that the district
provide him with an iPad so that he could access educational applications during
transportation to and from school.
2. His IEP team agreed to purchase an iPad for the student’s use at school only (he
would not be allowed to take it home). Dissatisfied with the District’s response,
parents requested an assistive technology evaluation, which the District agreed to
conduct at the beginning of the next school year. This was due to the fact that AT
staff did not work during the summer.
3. Parents filed for due process, alleging a denial of FAPE. The IHO held that there
was no evidence the teen required an iPad to communicate, socialize, or control
his behaviors on the bus. The student was progressing on all of his goals and
passing his classes. The IHO held that the IDEA does not require a district to
optimize the time a student spends on a bus even if transportation is deemed a
related service.
18. Can parents select the bus driver and/or aide?
Input, yes; Outright selection, no
A. Manville Board of Education, 36 IDELR 177 (SEA NJ 2002)
1. The nine-year-old student had a skin condition that required that the temperature
of his environment be comfortable and not be too warm, and that any vehicle in
which he rides should either have its windows opened (weather permitting), be
heated or be air-conditioned.
2. The school district contracted with a bus company to provide transportation for
the student. The driver assigned to the route was fired in mid-October due to
performance problems. A second bus company was hired, and then subsequently
terminated. A third transportation company was hired. The driver assigned to
transport the student was Nancy F.; whom parents disliked: she was often late for
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pick up, she “lied” to parents, she left a vitamin pill on her car seat, she allowed
the students to eat french fries and read “Toys R Us” magazines. This bus
company was also fired and a supervisor on staff started to transport the student.
3. The parent requested a due process hearing, asking for a private driver, or if that
was not possible, that she be allowed to participate in the selection of the
transportation provider and/or driver.
4. “A private individual cannot by-pass the mandated public contract process and
select a carrier or driver of his or her own choosing. The school district must act
to enforce performance standards in its transportation contracts and, when
contractors are removed for cause, award the contract to a new responsible
vendor…. The parent may offer input to the case manager (and through the case
manager, to the transportation coordinator and the driver) on specific information
for [the student], including safety concerns, his mode of communication, and any
health and behavioral characteristics the child has.”
B. Glocester School Department, 110 LRP 2792 (SEA RI 2009)
1. The mother of a medically fragile 9-year-old did not believe that the school
district employed anyone who was qualified to recognize the onset of her son’s
seizure. According to the mother, the only people that could identify the onset of
a seizure was her, her son, her mother and father and a private duty nurse
working in the home. Mother requested that the school district hire the private
duty nurse to ride the bus with the student.
2. The school district asked parent for permission for the school nurse, teacher and
aide to go into the home to learn signs of the student’s seizures. The Mother
refused, indicating that she did not feel that it was the private nurse’s
responsibility to train school district personnel about the seizures.
3. The IHO held that it was “incumbent on the Parents to give the School Personnel
all the help they need in educating the caregiver/nurse on the bus and in school
all the help possible to recognize the onset of seizures. The Student's life may
depend on this cooperation…. The development of an IEP is a collaborative
process and I find that the refusal of the Parents to allow the School District
personnel into the home to give important knowledge of the Student's very
complex medical condition does frustrate the process. If the actions of the
Parents are determined to be unreasonable then the School District cannot be
faulted for an incomplete IEP…. I find it to be totally unreasonable for the
Parents to not cooperate with the School District in assisting the School
Personnel in the Parents' home to observe the Student to gain experience in
recognizing the onset of seizures.”
19. Is “last on, first off” a reasonable request that school districts must comply with?
Maybe, depending on the student’s needs
A. Maine Regional School Unit No. 51, 58 IDELR 117 (SEA Maine 2011)
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1. The school district initially implemented a “last on, first off” arrangement for the
student, but changed its mind and deleted this accommodation from the IEP
summary. The mother insisted that her son needed a cool down period before he
could start his day.
2. There was considerable evidence that the student became anxious and agitated
when transportation did not go as planned.
3. Parents unilaterally arranged for taxi transport from the son to the tune of $80.00
per day.
4. “School districts have been required to have so-called "last-on, first-off"
transportation if there are medical reasons to support such a practice.” Board of
Education of Smithtown Central School District, 30 IDELR 562 (SEA NY 1999).
5. The IHO ordered that: “the Student’s IEP must be amended to contain a mode of
transportation that will allow the Student to arrive at school on time, except in
exigent circumstances, and that will not cause him undue anxiety. The IEP team
should also consider adding a goal for the Student to manage his frustration and
agitation regarding his transportation.”
20. Can parents dictate the route, schedule, bus stop locations, etc?
Generally no, but there are exceptions
A. Decisions involving bus routes, bus-stop locations and scheduling are issues that involve
systemic aspects of school transportation programs that fall within the school district’s
authority.
B. Some special exceptions have been recognized that allow parents a degree of input over
routing and scheduling. For example, parents can challenge bus scheduling as
discriminatory if the rides for students with disabilities are substantially longer than those
of nondisabled students. “Last-on, first-off” may also be appropriate, depending on a
student’s unique needs.
C. Los Angeles Unified Sch. Dist., 53 IDELR 138 (SEA CA 2009)
1. A California school district did not deny FAPE to a student with a mobility
impairment and a serious health condition when it reassigned him to a school
farther from his home.
2. The IHO found no evidence that the student’s medical needs required him to be
bused to his neighborhood school or provided with a direct, nonstop bus ride to
the new placement.
D. Olathe Unified School District #233, 47 IDELR 78 (OCR 2006)
1. Parent cannot require district to create a cross walk because student is
embarrassed to ride the special education bus.
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2. Parent claimed district discriminated against her son with a disability by
proposing that he ride the special education bus when he could have walked to
school if the school had provided cross walk access. Parent claimed that riding
the special education bus was humiliating to her son. The school found that
adding a crosswalk was not feasible and offered to provide an employee to assist
the student across the street, but parent requested and consented to transportation
instead. OCR found that the district provided free transportation to the student to
allow him to access his education, 504 does not require a certain type of
transportation, only that the student has access to school.
21. Can an IHO order a school district to provide better trained bus personnel?
Yes
A. Detroit Public Schools, 56 IDELR 58 (SEA Mich. 2010)
1. Bus driver transporting deaf students must be trained in sign language.
2. A bus carried 12 deaf students to and from a school for the deaf. Neither the bus
driver nor aide knew sign language. Bus staff were provided a booklet with basic
signs. Parents requested that the IEP specify transportation with an aide who
knew sign language, but the district declined. The IEP was not appropriate
because it did not address the communication barriers between the student and
the bus staff, and therefore created a significantly unsafe situation. The IHO
required that bus staff be trained in sign language.
B. Corpus Christi Independent School District, 57 IDELR 297 (SEA Tex. 2011)
1. The student was repeatedly suspended (10+ times) from the bus for aggressive
behavior, failure to remain seated, and use of profanity. The district proposed that
the student’s grandparents provide his transportation with the district
compensating them for their mileage. The grandparents rejected this proposal and
filed for due process, alleging that the school district failed to provide
appropriately trained personnel on the bus.
2. The district’s bus monitor that supervised children on the bus was only generally
trained on behavior management. Given the frequency and significance of the
student’s misconduct on the bus, the IHO concluded that the monitor was
ineffective in ensuring safe transportation for the student and his peers. The IHO
concluded that the district must provide more specifically trained bus monitors
that could deal with the student’s unique behavioral issues.
22. Can a student’s day be shortened due to administrative convenience?
No
A. Alabama (AL) State Department of Education, 112 LRP 49155 (OCR 2012)
1. OCR found that a number of Alabama districts scheduled special education buses
to arrive after the school day began and/or depart before the day ended.
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2. Nonacademic services, such as transportation, must be provided in a manner that
is necessary to afford students with disabilities an equal opportunity to participate
in such services. 34 CFR 104.37 (a).
3. Transportation of a student with a disability should not be provided in a manner
that results in the student having a shorter school day than nondisabled students,
unless his IEP or Section 504 plan states otherwise.
4. Although “school districts may consider student safety and costs when mapping
out the logistics of transporting their students with disabilities…. districts must
bear in mind that administrative convenience is never an excuse for
impermissibly shortening the instructional time that students with disabilities
receive.”
B. Stillwater Independent School District #834, 54 IDELR 241 (SEA Minn. 2010)
1. A district violated the IDEA when it repeatedly removed a student from class
early to preboard the school bus.
2. The school district explained that it removed the student from school early
because the student was anxious when the hallways were crowded. However, the
student’s IEP summaries did not require him to avoid crowded hallways, be
escorted in the hallway, or board the bus before other students.
23. Can a bus ride ever be too long?
Perhaps, but this is unlikely (assuming there is no appropriate placement closer)
A. Oceanside Unified School District, 58 IDELR 266 (SEA Cal. 2012)
1. A 12-year-old student diagnosed with Autism rode the bus for about an hour and
a half on his way to school each morning and for almost two hours each
afternoon. Arguing that the bus ride was unreasonably long, the student's mother
filed for due process alleging a denial of FAPE.
2. The IHO observed that the student received transportation services pursuant to a
settlement agreement, not an IEP. The agreement did not define or describe
transportation, nor did it guarantee a certain length of commute. The mother
claimed that the student was often fatigued from his bus rides, he failed to fully
participate in afternoon ABA sessions after the long trips, and that his grades had
dropped since he began taking the bus.
3. The IHO found there was no evidence that fatigue prevented the student from
making meaningful progress in his classes or with his ABA therapy. The parent
failed to show that the student had any behavioral or toileting issues, or any
special, physical, or mental health needs that impacted his ability to tolerate long
commutes.
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B. Brett K. v. Momence C.U.S.D. 1, 47 IDELR 257 (N.D. Ill. 2007)
1. Individual transportation to reduce bus time was not required where parent did
not prove that long rides adversely affected student’s progress.
2. A 9-year-old student was eligible for special education under the classifications
of autism, mentally impaired, and speech language impaired. IEP team agreed he
would attend a therapeutic day school and the district would provide
transportation and an individual aide. The commute took an hour and a half to
two hours. The parent claimed that the long ride exacerbated his behavior
problems and therefore impeded his academic progress. She asked the district to
provide individual transportation. The court found that the parent did not prove
that the student’s behavior was worse in the morning after a long commute, and
the school did show that he had made progress (on all but one of his goals).
District provided FAPE to student.
C. M.M. v. Unified Sch. Dist. No. 368, 51 IDELR 188 (D. Kan. 2008)
1. A 90 minute commute for a teenager with Down syndrome to get to his out-ofdistrict
placement did not make his placement overly restrictive.
2. The District Court held that a Kansas district had no obligation to educate the
student in his neighborhood school. The neighborhood school did not offer the
functional skills instruction that the student required.
24. Can students be carried on and off buses in the normal course (i.e., not in an exigent
circumstance)?
No
A. Fletcher (OK) Public Schools, 52 IDELR 50 (OCR 2008)
1. OCR found that an Oklahoma district violated Section 504 by having a bus driver
and other individuals carry a student onto a regular education bus in his
wheelchair.
2. OCR explained that programs and activities are "readily accessible" only if
persons with mobility impairments can enter and leave without assistance from
others.
25. How should a school district respond in situations where parents voluntarily elect to
transport?
Document it and be careful
A. Garden Grove Unified Sch. Dist., 53 IDELR 278 (SEA CA 2009)
1. Parents were voluntarily transporting their son to and from school at their own
expense. There came a point, however, where parents started to raise the issue of
resuming transportation through the school district. However, the district did not
convene an IEP meeting.
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2. The IHO ordered the school district to reimburse parents for the transportation
costs from the time that the parents informed the district that they could no longer
drive the student.
B. Letter to Dunstan, 211 IDELR 303 (OSEP 1983)
1. Parents voluntarily elected to arrange for transportation and waived
reimbursement.
2. OSEP advised that the school district should reflect this waiver in writing and
include a statement in the IEP summary that the school district was ready, willing
and able to provide and pay for transportation, but parents declined.
C. It may be acceptable for a school district to discharge its duties to transport a student with
a disability by requiring parents to locate and supply their own transportation for their
child and then reimburse parents for their expenses, as long as this arrangement is
mutually agreeable to the parents and the district. Letter to Hamilton, 25 IDELR 520
(OSEP 1996), and Letter to Neveldine, 24 IDELR 1042 (OSEP 1996).
26. Is transportation outside of a school district’s boundaries ever warranted?
The answer to this question depends on state law. Be sure to review:
A. 23 Ill.Adm.Code §120.30 Pupil Transportation Services Eligible for Reimbursement: “If
a pupil is at a location within the school district other than his/her residence for child care
purposes at the time for transportation to and/or from school, that location may be
considered for purposes of determining the 1½ miles from the school attended (Section
29-5 of the School Code). A district that chooses to consider locations other than
individual students’ residences shall adopt a written policy establishing this practice. At
the district’s discretion, its policy may limit pick-up and drop-off to students in day care
locations along the district’s regular routes, or it may extend services via newly
established routes. In either case, the district shall not discriminate among types of
locations where day care is provided, which may include, but need not be limited to, the
premises of licensed providers, the homes of relatives, or the homes of neighbors, any of
which must be located within the district’s boundaries.”
B. Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153 (5th Cir. 1986)
1. The student’s babysitter lived a mile outside the school district boundary. The
school district declined the parents’ request to transport their child to and from
the baby-sitter’s house for this reason.
2. The district court held that transportation does not cease to be a related service
simply because a parent requests transportation to a site a short distance beyond
the district boundaries.
3. The 5 th Circuit affirmed the decision, holding that “the transportation required as
a related service under the Act is not arbitrarily limited by the geographic
boundaries of the school district so long as it is required for the special
circumstances of the handicapped child and is reasonable when all of the facts
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are considered…. The School District has not argued that the transportation
would in any way create a burden, much less an unfair burden, on the School
District or on other children being transported. There is neither evidence nor
argument that going a mile out of the district boundaries would create any
substantial additional expense, disrupt efficient planning of school bus routes,
entail additional time to transport other children, or in any other way
inconvenience other children on the bus route.”
27. Can a school district be liable for a sexual assault between students that occurs on a school
bus?
Yes
A. Lopez v. Metropolitan Government of Nashville and Davidson County, 646 F. Supp. 2d
891 (M.D. Tenn. 2009)
1. District could be liable for sexual assault of student where it knowingly placed
him on a bus with a student known to engage in sexually inappropriate behavior.
2. A 9-year-old student and a 19-year old student with a history of frequently
engaging in sexually inappropriate behaviors were assigned to the same bus
route. Parents of both students requested that the school put a monitor on the bus,
but the school refused. Failure to act generally does not result in a state created
danger but if plaintiff can identify conduct that created or increased the risk of
harm, the district could be liable.
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